Dangerous ruling risks women's rights

Published July 01. 2014 12:01AM

The U.S. Supreme Court's decision Monday in Burwell v. Hobby Lobby Store, Inc. was stunning both in its sexist nature and in ignoring long-standing precedent preventing corporations from imposing their religious beliefs and values on employees.

On one side of the decision were the court's five conservative justices - all men appointed by Republican presidents - saying it was OK for Hobby Lobby and another company, Conestoga Wood Specialties, to ignore the federal health law requirement that the insurance policies they provide include free contraception coverage for women. Whether women take advantage of the coverage is, of course, up to them and their doctors.

On the other side of the 5-4 ruling were the three women on the court, joined by Justice Stephen Breyer - collectively representing the liberal wing - who decry in their dissenting opinion the majority's ruling that the religious positions of a few corporate leaders trump the personal freedoms of their female employees.

The two corporations challenged the contraception mandate on the grounds it includes methods that the corporate leaders consider tantamount to abortion because they can prevent embryos from implanting in the womb. Forcing them to include the methods in coverage would make them complicit in the practice, they argued.

The court's decision hinges on the Religious Freedom Restoration Act (RFRA) of 1994 that prevents the government from "taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest."

In other words, it is a bad and unclear decision based on a bad and unclear law.

Justice Samuel A. Alito Jr., seemingly recognizing the thin constitutional ice on which he was treading, sought to narrow the scope of the decision.

"The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family," Justice Alito writes, arguing that the ruling should only be viewed in that narrow context.

In her dissent, Justice Ruth Bader Ginsburg looks through that transparent curtain.

"Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private," she writes.

Given the majority's expansive interpretation of the RFRA, why couldn't a Catholic corporate ownership deny any form of birth control coverage based on the church's teaching? Some religious sects oppose vaccines and transfusions, others medications derived from certain animals. Could owners with these beliefs refuse to provide insurance coverage for such treatments, Justice Ginsburg asks.

For that matter, she continues, the conservative majority's reasoning could extend outside of health policy, throwing out laws that prevent corporations from using their own religious standards to discriminate against unmarried people living together, or homosexuals, or those in inter-religious or inter-racial marriages.

Best case, the decision is so narrow that it is only OK for a closely held corporation to impose its beliefs on employees when the topic is the reproductive rights of women. Either way -broad or narrow - the ruling is a terrible one.

In 1982, the high court ruled on the case of an Amish farmer who believed that withholding Social Security taxes from his employees or paying the employer's share of such taxes would violate his faith. The court said he could not use a religious rights' argument to deny his workers participation in Social Security.

"When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed … on others in that activity." An employer, that court found, cannot "impose (its) religious faith on the employees."

That is what Hobby Lobby is doing to its female employees. The court should have followed its own precedent.